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2025 Supreme(Online)(Kar) 32642
KARNATAKA HIGH COURT
ASHOK S.KINAGI, J
NAZIR AHMED BOLAR – Appellant
Versus
MOHAMMED SHARIFF BOLAR – Respondent
Regular Second Appeal No. 936 of 2019 (DEC/INJ)
For the Appellants/Petitioners: SRI. MOHAMMED TAHIR
For the Respondents: SRI. P N HARISH
To establish a valid Hiba under Mohammedan Law, the essential ingredients of declaration, acceptance, and delivery of possession must be proven; failure to prove possession results in dismissal of the claim.
Headnote:(A) Code of Civil Procedure, 1908 - Section 100 - Regular Second Appeal - Dismissal of suit for declaration of title and injunction based on alleged oral gift (Hiba) - Validity of oral Hiba concerning criteria of proper gift established under Mohammedan Law, including essential ingredients of offer, acceptance, and delivery of possession. (Paras 1, 21, 22, 24)
(B) Law of Gift - The court emphasized that essential ingredients of Hiba must be rigorously established; failure to demonstrate delivery of possession warrants dismissal of claims. (Paras 22, 24)
Facts of the case:
The plaintiff sought a declaration of title to property allegedly gifted through oral declaration by co-heirs. The defense contested the validity of this gift based on lack of proof of possession and the executed affidavits stating otherwise.
Findings of Court:
Both lower courts found the plaintiff failed to prove the elements of the Hiba and dismissed the suit.
Issues: 1) Whether the court erred in dismissing the suit based on failure to establish oral gift? 2) Did the courts err in dismissing the claim against unrepresented defendants?
Ratio Decidendi: Courts ruled that the essential elements of the Hiba were not met, notably the requirement of possession delivery, affirming that even if some defendants did not contest, the plaintiff alone bore the burden of proof.
Result: Regular Second Appeal is dismissed; judgments of lower courts are confirmed.
| Table of Content |
|---|
| 1. inheritance and gifting of property (Para 3) |
| 2. court's procedural observations on hearing (Para 4 , 8 , 9) |
| 3. arguments urging for consideration of oral gift (Para 5 , 6) |
| 4. defining essential requirements of a valid hiba (Para 21 , 22 , 23) |
| 5. final dismissal of appeal confirming lower court's judgments (Para 27 , 29) |
ORAL JUDGMENT
This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 15.02.2019, passed in R.A.No.1/2016 by the learned III Additional District Judge, Shivamogga and the judgment and decree dated 28.10.2015 passed in O.S.No.125/2012 by the learned I Additional Senior Civil Judge and CJM, Shimogga.
2. For convenience, parties are referred to based on their rankings before the trial Court. The appellant was the plaintiff and the respondents were the defendants.
3. The brief facts leading rise to the filing of this appeal are as follows:
The plaintiff filed a suit against the defendants for the relief of a declaration of his title over the suit schedule property and for consequential relief of a permanent injunction. It is the case of the plaintiff that defendants No.1 to 7 and Smt. Afroza Hussain are the sons and daughters of one B. Fakeer Mohamed Saheb. He died on 29.08.1975, leaving behind his wife Hazarambi, the plaintiff and defendants No.1 to 7 and another daughter, Afroza Hussain. Smt. Hazarambi, died on 18.11.1980. Afroza Hussain died on 11.10.2007, leaving behind the defendants No.8, 9 and 10 as her legal heirs.
3.1. B. Fakeer Mohammed Saheb, i.e., the plaintiff’s father; had purchased the suit schedule property under a registered sale deed dated 19.06.1962, and based on the registered sale deed, the name of Fakeer Mohammed Bolar was entered in the revenue records. After the demise of Fakeer Mohammed, the suit schedule property was inherited by the plaintiff, defendants No.1 to 7 and Smt. Afroza Hussain as tenants in common, where each son is getting 2/14th share and each daughter is getting 1/14th share. Out of love and affection, defendants No.1 to 7 and Smt. Afroza Hussain gifted their respective shares in the suit schedule property in favour of the plaintiff, by way of oral declaration (“Hiba”). Defendants No.1 to 3, 6 and 7 and Smt. Afroza Hussain made a declaration of Hiba on 31.01.2000 and confirmed the same by executing the documents in the form of the affidavits before the Notary on 18.04.2000. Defendant No.4 made an oral gift on 25.07.2005 and confirmed it later on 21.06.2011 before the Indian Embassy, Riyadh, Soudi Arabia. Thus, all the heirs of deceased B. Fakeer Mohammed Saheb, have gifted the suit schedule property in favour of the plaintiff. Hence, the plaintiff became the absolute owner of the suit schedule property and spent huge money for demolition of unauthorised construction. The name of the plaintiff was entered in the revenue records, and defendant No.1 filed his objection. The Tahsildar ordered a mutation in the name of defendant No.1 as he was the eldest son of B. Fakeer Mohammed Saheb.
3.2. The plaintiff, aggrieved by the order passed by the Tahsildar, preferred an appeal before the Assistant Commissioner. The Assistant Commissioner ordered to transfer the khata in the joint names of the plaintiff and defendant No.1, reserving their right to settle the dispute before the Civil Court. Hence, a cause of action arose for the plaintiff to file a suit for a declaration of title and a permanent injunction. Accordingly, prays to decree the suit.
3.3. Summons was issued to the defendants. Despite service of summons, defendants No.11 to 13 remained unrepresented and they were placed exparte. Defendants No.2 to 10, 14 and 15 appeared through the counsel, but they did not file a written statement; only defendant No.1(b) filed her written statement and defendant No.1(a) has adopted the same.
3.4. Defendant No.1(b) filed a written statement contending that the suit is bad for non-joinder of necessary parties. The relationship between the parties i
